Citation Nr: 1426219
Decision Date: 06/10/14 Archive Date: 06/16/14
DOCKET NO. 12-21 782 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Honolulu, Hawaii
THE ISSUE
Whether new and material evidence has been submitted sufficient to reopen a claim of service connection for coronary artery disease and, if so, whether service connection is warranted for the claimed disability.
REPRESENTATION
Appellant represented by: Guam Office of Veterans Affairs
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Christopher Murray, Counsel
INTRODUCTION
The Veteran had active military service from November 1970 to August 1973 with additional unverified periods of active duty for training (ACDUTRA) with the Air Force Reserves.
This case comes before the Board of Veterans' Appeals (Board) on appeal of a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii.
In August 2013, a videoconference hearing was held before the undersigned Veterans Law Judge (VLJ). During the hearing, the VLJ explained the issue that is before the Board and asked questions to ascertain whether the Veteran had submitted evidence in support of his claim. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims folder that might have been overlooked or was outstanding that might substantiate the claims. The VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claim based on the current record. See Bryant v. Shinseki, 23 Vet. App. 488 (2010).
The issue of entitlement to service connection for coronary artery disease is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.
FINDINGS OF FACT
1. A May 2008 rating decision denied the Veteran's application to reopen a claim of entitlement to service connection for coronary artery disease. The Veteran was notified of his appellate rights, but did not file a notice of disagreement within one year of the rating decision.
2. Evidence received since the May 2008 rating decision, presumed credible, is not cumulative of the evidence of record at the time of the previous denial as it relates to an unestablished fact necessary to substantiate the claim of service connection for coronary artery disease and raises a reasonable possibility of substantiating the Veteran's claim of service connection.
CONCLUSIONS OF LAW
1. The May 2008 rating decision which denied the Veteran's application to reopen a claim of entitlement to service connection for coronary artery disease is final. 38 U.S.C.A. § 7105(c) (West 2002).
2. Evidence received since the May 2008 rating decision in connection with Veteran's claim of entitlement to service connection for coronary artery disease is new and material and the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and Assist
With respect to the Veteran's application to reopen his previously denied claim of service connection, since the entire benefit sought on appeal has been granted, no purpose would be served by undertaking an analysis of whether there has been compliance with the notice and duty to assist requirements set out at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002)). See, e.g., Bernard v. Brown, 4 Vet. App. 384 (1993); VAOPGCPREC 16-92, 57 Fed. Reg. 49,747 (1992).
Analysis
The RO previously denied the Veteran's application to reopen a previously denied claim of service connection for coronary artery disease by a May 2008 rating decision. In this decision, the RO determined that service connection was not warranted because there was insufficient evidence to establish that the Veteran's coronary artery disease was etiologically related to his military service. The Veteran was notified of this decision and of his procedural and appellate rights but did not complete an appeal of this decision. Therefore, the May 2008 rating decision is final. 38 U.S.C.A. § 7105(a) (West 2002); 38 C.F.R. §§ 20.302, 20.1103 (2013).
A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C.A. § 5108. The Secretary must reopen a finally disallowed claim when new and material evidence is presented or secured with respect to that claim. Knightly v. Brown, 6 Vet. App. 200 (1994).
New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 8 C.F.R. § 3.156(a).
The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. At 118.
Only evidence presented since the last final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273 (1996). Finally, for the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992).
The evidence received since the May 2008 rating decision includes a number of private and VA treatment records, several statement from the Veteran, and the transcript of an August 2013 hearing before the Board. Significantly, through his statements and at the Board hearing, the Veteran has alleged actual exposure to Agent Orange while serving with the Air Force Reserves on Andersen Air Force Base. Should exposure to an herbicide be conceded, service connection for coronary artery disease would be warranted. See 38 C.F.R. § 3.309(e). The theory of presumptive service connection due to herbicide exposure had not been previously considered. Therefore, the Board concludes that the additional evidence is new and material with respect to the issue of service connection for coronary artery disease. This evidence was not of record at the time of the previous final denial and raises a reasonable possibility of substantiating the Veteran's claim of service connection by raising an alternate theory of entitlement. See Shade, 24 Vet. App. at 118. Consequently, the Veteran's claim of entitlement to service connection for coronary artery disease must be reopened.
ORDER
New and material evidence having been submitted, the claim of entitlement to service connection for coronary artery disease is reopened. To this extent only, the appeal is granted.
REMAND
As discussed above, the Veteran claims service connection for coronary artery disease on a number of theories of entitlement. First, he claims this disability is directly due to his period of active service, as he was diagnosed with a functional heart murmur in December 1972, and has submitted a Report of Medical Examination to this effect. He has also claimed service connection based on his approximately ten year service with the Air Force Reserves. Regarding this theory of entitlement, the Board notes that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from an injury (but not disease) incurred or aggravated while performing inactive duty for training (INACDUTRA). 38 U.S.C.A. §§ 101(24), 106, 1110, 1131.
To date, VA has not requested records related to the Veteran's service in the Reserves. Further, the Board notes that the Veteran has previously submitted copies of records received directly from the National Personnel Records Center (NPRC), indicating that there may be service treatment records outstanding. Finally, the record indicates the Veteran is in receipt of Social Security Administration (SSA) disability benefits. See October 2005 SSA correspondence. To date, no effort has been undertaken to obtain these records.
Accordingly, the case is REMANDED for the following action:
1. Contact the VA Records Management Center (RMC), National Personnel Records Center (NPRC), Air Reserve Personnel Center and any other appropriate source, and request all service personnel and service treatment records related to the Veteran's service, including service on active duty and with the Air Force Reserves. Ensure the Veteran's duty status for all periods of service have been verified. Prepare a memorandum for inclusion in the claims file detailing each period of active duty, ACDUTRA and INACDUTRA.
2. Obtain and associate with the claims file all outstanding VA treatment records.
3. Contact the Social Security Administration and request all records related to an SSA disability claim, which was granted by SSA in October 2005.
4. Verify whether there was any herbicide use at Anderson Air Force base in Guam during the Veteran's periods of service.
5. Regarding instructions # 1-4, efforts to obtain these Federal records must be documented and continue until a negative response is received, or until it is determined that they do not exist or that further efforts would be futile. If these records are not obtained, the Veteran should be so informed and given an opportunity to submit any related records in his possession.
6. Following completion of the above, schedule the Veteran for a VA examination to address the nature and etiology of his current coronary artery disease. The entire claims file (including both the paper and virtual files) must be provided to the examiner for review, and the examination report should reflect that such a review was accomplished. Any clinically indicated tests and consultations should be provided. Following a review of the claims file, the examiner is requested to address the following:
a. Please identify the date of onset of the Veteran's current coronary artery disease.
b. Provide an opinion as to whether it is at least as likely as not (probability of at least 50 percent) that the Veteran's current coronary artery disease is etiologically related (incurred in, caused or aggravated by) any verified period of active duty or ACDUTRA or manifested within one year of service separation. In offering this opinion, the examiner should address a December 1972 Report of Medical Examination showing a diagnosis of a functional heart murmur.
A complete rationale should be provided for each opinion offered, including if an opinion cannot be provided without resort to speculation.
7. After completing the above, and any other development deemed necessary, readjudicate the Veteran's claim based on the entirety of the evidence. If the benefits sought on appeal are not granted to the appellant's satisfaction, he and his representative should be provided with a supplemental statement of the case. An appropriate period of time should be allowed for response.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court
of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).
______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs